CM v XH

 
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[2011] NZLCRO 31

LCRO 97/2010

BETWEEN

Concerning

An application for review pursuant to Section 193 of the Lawyers and Conveyancers Act 2006

And

Concerning

a determination of the Auckland Standards Committee 4

CM of Auckland
Applicant
and
XH of Auckland
Respondent
Counsel:

Mr CM as the Applicant

Mr XH as the Respondent

The Auckland Standards Committee 4

The New Zealand Law Society

Applicant for review of a Standards Committee decision to take no further action against a lawyer who sent an email to the applicant's work, advising the applicant that his partner wished to separate and that the practitioner had failed in his duty to promote reconciliation or conciliation under s8 Family Proceedings Act 1980- whether the lawyer's actions amounted to unprofessional conduct by virtue of having sent the letter to the applicant's workemailaddress, which could be accessed by unauthorised individuals; and whether the lawyer had failed in his duty to promote reconciliation or conciliation.

The names and identifying details of the parties in this decision have been changed.

At issue was: whether XH's actions amounted to unprofessional conduct by virtue of having sent the letter to CM's work email address which could be accessed by unauthorised individuals; and whether XH had failed in his duty to promote reconciliation or conciliation.

Held: The conduct pre-dated the commencement of the Lawyers and Conveyancers Act 2006. By virtue of s351, a Standards Committee had jurisdiction to consider such complaints only if the conduct complained of could have led to disciplinary action against XH under the Law Practitioners Act 1982 “LPA”. The standards under the LPA had a higher threshold than those now applicable under the Lawyers and Conveyancers Act andits Rules of Conduct and Client Care “CCCR”.

The email was sent to CM's inbox at work and was not marked as personal or confidential. CM alleged XH sent the email to his work address knowing that it would cause him embarrassment, distress or inconvenience in breach of r7.04 CCCR. These Rules had not however come into existence until some six monthsafter the conduct complained of and needed to be considered under the LPA and Rules of Professional Conduct for Barristers and Solicitors. Rule 1.08 of that code required lawyers to hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship and to not divulge or disclose such information except in circumstances, which included where the client expressly or impliedly authorised the disclosure.

There was no reason to conclude that XH knew that CM had instructed a lawyer, or that he deliberately sought to embarrass CM. There was no suggestion that XH's client, R, did not authorise the information to be conveyed to CM. XH sent his email to the personal inbox of CM. There was no evidence to contradict XH's statement that he believed that this would be received by only CM. CM himself used his work email address to communicate XH on 13 subsequent occasions, indicating CM did not have concerns about his continued use of his inbox. XH's conduct in sending a letter to CM's inbox did not reach the threshold required for disciplinary action to have been taken against XH.

XH's client, as well as CM, were aware of the mechanisms whereby reconciliation or conciliation might be promoted, namely through the Family Court mediation or counselling services. In these circumstances it would be difficult to see how XH failed to inform his client of these opportunities. XH had no professional duty towards the CM and there was nothing to indicate that R ever wanted to be reconciled with CM at the time these events unfolded. XH's duty to his client did not extend to persuading her towards a reconciliation that was not wanted.

Decision of the Standards Committee confirmed.

DECISION
1

Complaints were made by Mr CM (the Applicant) against Mr XH (the Practitioner) who acted for his de facto partner in relation to a separation which involved relationship property and child custody issues. None of the complaints were upheld, the Standards Committee having concluded, pursuant to Section 138(2) of the Lawyers and Conveyancers 2006 to take no further action. This section confers on a Standards Committee a discretionary power to take no further action on a complaint if, in the course of the investigation, it appears to the Standards Committee that, having regard to all the circumstances of the case, any further action is unnecessary or inappropriate.

2

The Applicant exercised his right to have that decision reviewed. There were a number of reasons why he sought the review, one of the principal reasons being that the Standards Committee had not, in his view, provided reasons for declining to uphold his complaint. From my early assessment of the file, I agreed that the Standards Committee decision was not explained by any clear statement of reasons and the Standards Committee was requested, pursuant to Section 204(a)(ii) of the Lawyers and Conveyancers Act to provide reasons for its decision.

3

It is appropriate to remind Standards Committees of their obligation to provide reasons for all of its decisions made pursuant to Section 138. This is a statutory obligation imposed by Section 139(2) of the Act.

4

The Standards Committee provided a statement of reasons shortly thereafter and this was provided to both parties who were invited to respond and provide any further information as they wished to forward. The Applicant raised a query about whether his review application to this Office had been sent to the Standards Committee. I am able to confirm that this was not done and should he wish to receive a copy of the letter to the Standards Committee, it will be made available to him on request.

5

This review has been conducted “on the papers” that being on the basis of the materials on the Standards Committee file, which was provided to my Office, and all the information provided by the parties in relation to this review. Section 206 of the Lawyers and Conveyancers Act provides for a review on the papers if the parties consent, and if it appears to the LCRO that the review can be adequately determined in their absence and in the absence of representatives and witnesses. The parties consented to a review on the papers.

Standards Committee Procedures

6

In addition to raising concerns about the absence of reasons, the Applicant also had raised with the Standards Committee his expectation that he would have been given an opportunity to provide submissions to the Standards Committee for its consideration. He referred to the Standards Committee's letter to him of 22 December 2009 wherein the following paragraph was included.

All information submitted to the Standards Committee should be in writing and in a form that can be copied to the lawyer concerned. This is because theLawyers and Conveyancers Act 2006 provides for Standards Committees to conduct their hearings on the papers once the investigation is completed. At that stage your written submissions will be invited.

7

The Applicant had apparently assumed from the above that there would be a hearing and said that he had every intention of making some written submissions and had been denied the opportunity to do so before the Standards Committee considered the evidence. He had raised this concern with the Standards Committee and received a response the next day with a better explanation of the Standards Committees procedures. In particular, the Applicant was informed that the Committee had not set the matter down for a “hearing on the papers”, having resolved to take no further action.

8

It is not hard to see how the Applicant may have been confused by the information he had received. It is not altogether clear from the Committee's letter to him that a Standards Committee investigation involves a preliminary assessment, and that a hearing on the papers will be done (and submissions sought) only if the Standards Committee considers that further investigation should be undertaken. If the Committee decided that no further action is necessary or appropriate, it would then issue a decision to dismiss the complaint pursuant to Section 138.

9

In any event, there is nothing to indicate that the Standards Committee was not in full possession of all the information in relation to the complaints. However, the Applicant has had the opportunity, as part of the review process, to forward any additional information that he considered relevant to the matter.

Background

10

The Practitioner acted for the Applicant's former de facto partner, R, in separation and relationship property matters in early 2008. The Applicant had his own lawyer. Aside from the initial correspondence with the Applicant, all communications were conducted between the lawyers. There were children of the relationship and also property matters to be dealt with. All matters were eventually settled, making it unnecessary for any proceeding to be filed.

Substantive complaints

11

There were two principal complaints made by the Applicant. The first concerned an email sent by the Practitioner to the Applicant, informing him of R's wish to separate and other related matters. This email was sent to the Applicant's email address at his work. The Applicant complained that the Practitioner ought to have sent it to his lawyer. He further alleged that the Practitioner had failed to protect his privacy

12

The second complaint alleged that...

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